defending class actions using absent class member...

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Presenting a live 90-minute webinar with interactive Q&A

Defending Class Actions Using

Absent Class Member Discovery Evaluating Whether to Seek Discovery of Putative Class Members;

Leveraging Evidence at Certification, Settlement and Trial

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, MARCH 2, 2017

Wystan M. Ackerman, Partner, Robinson & Cole, Hartford, Conn.

Andrew J. Trask, Senior Counsel, McGuire Woods, Los Angeles

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-869-6667 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can

address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Discovery of Absent Class Members:

Governing Law

Andrew Trask

McGuireWoods London LLP

[email protected]

mailto:[email protected]

The Stakes

Need for complete discovery

VERSUS

Burden on non-parties to litigation.

6

So type of case matters.

Absent class member discovery tends to be limited in employment cases. (Risk of coercion/chilling high.)

Tends to be more acceptable in consumer cases. (Risk of

coercion/chilling low.)

7

Formal discovery is subset of

communications

Each side has

the right to

communicate

with putative

class members.

Gulf Oil Co. v. Bernard, 452

U.S. 89 (1981) (bans on

communication with class

members disfavored).

EEOC v. Mitsubishi Motor

Mfg. of Am., 102 F.3d 869

(7th Cir. 1996) (Easterbrook,

J.) (referring to each

party’s “right” to

communicate with absent

class members).

8

Standard for communication

with absent class members

Court may not restrict communications “without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties."

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) (quoting Coles v. Marsh, 560 F.2d 186, 189 (3d Cir. 1977) (emphasis added).

See also Adair v. EQT Production Co., 2011 U.S. Dist. LEXIS 110512 (W.D. Va. Sep. 28, 2011) (reversing MJ order regulating communication where no specific showing).

9

General standard for formal

discovery

Proponent must

show

(1) No improper

motive

(2) Necessity

(3) Minimal

burden/need for

counsel

Clark v. Universal Builders,

Inc., 501 F.2d 324, 340-41

(7th Cir. 1974).

Arrendondo v. Delano

Farms Co., 1:09-cv-01247,

2014 U.S. Dist. LEXIS 145562,

*12-13 (E.D. Cal. Oct. 10,

2014).

10

Discovery not likely if imposes burden

on class members

S.D.N.Y. did not allow where the “practical effect of defendants' interrogatories would be the alteration of the

Classes from opt-out classes to opt-in classes.”

In re Petrobras Secs. Litig., 2016 U.S. Dist. LEXIS 21028,

(S.D.N.Y. Feb. 22, 2016).

11

Formal discovery - Burden varies

depending on discovery type

Interrogatories lesser burden

Depositions greater burden

Requests for admission greater burden

Clark v. Universal Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974) (“the burden confronting the party seeking deposition testimony should be more severe than that imposed on the party requesting permission to use interrogatories”).

McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514 (S.D. Cal. 2008) (RFAs would require assistance of counsel).

12

Formal discovery more likely if class

member “injected” into debate

Antoninetti v. Chipotle, Inc., 2011 U.S. Dist. LEXIS 54854 (S.D. Cal. May 23, 2011)(allowing depositions of class members who "injected themselves" into litigation by submitting declarations in support of class certification).

Disability Rights Council of Greater Washington v. Washington Metropolitan Area Transit Authority, 234 F.R.D. 4, (D.D.C. 2006)(allowing depositions of 20 class members who offered declarations in support of discovery motion).

Cornn v. United Parcel Service, Inc., 2006 U.S. Dist. LEXIS 69196, 4 (N.D. Cal. Sep. 14, 2006) (denying leave to depose class members but noting that “ruling does not preclude UPS from asserting that it is entitled to depose absent class members recently identified by Plaintiffs as potential witnesses").

13

Formal discovery more likely if more

limited - 1

“Unlike other cases where

Defendants sought

discovery from significantly

larger numbers of (and at

times, all) absent class

members, here Defendants

have limited their request

to roughly 200 - less than

one percent of the 25,000

total class members.”

Arrendondo v. Delano

Farms Co., 1:09-cv-01247,

2014 U.S. Dist. LEXIS 145562,

*24 (E.D. Cal. Oct. 10,

2014).

14

Formal discovery more likely if more

limited - 2

Depositions allowed where

“each deposition is limited

to one hour and is

appropriately focused.”

Antoninetti v. Chipotle,

Inc., 2011 U.S. Dist. LEXIS

54854, *6 (S.D. Cal. May 23,

2011).

15

Privilege

Under certain

circumstances, some

absent class member

discovery might be

privileged.

E.g., draft declarations

taken by plaintiffs’

counsel considered

work product.

Tierno v. Rite Aid Corp., No.

C 05-02520, 2008 U.S. Dist.

LEXIS 112461, *9-10, 13 (N.D.

Cal. Jul. 8, 2008).

16

Informal discovery – Identifying class

members

Defendants can usually just look at their records.

Plaintiffs may have to serve discovery on defendants.

Class member IDs generally not discoverable.

Oppenheimer Fund v. Sanders, 437 U.S. 340, 352 (1978).

See also, e.g., Swelnis v. Universal Fidelity L.P., 2014 U.S. Dist. LEXIS 53058, *6 (N.D. Ind. Apr. 17, 2014) (following Oppenheimer);

Godson v. Eltman, Eltman & Cooper, PC, 2013 U.S. Dist. LEXIS 129988, *6 (W.D.N.Y. Sep. 11, 2013)(refusing to compel production of contact information where “no basis to believe” communication would assist “in determining the appropriateness of certifying a class action”)

17

Exceptions to Oppenheimer

Generally in employment cases. See, e.g., Wellens v. Daiichi Sankyo Inc., 2014 U.S. Dist. LEXIS 29794, *6 (N.D. Cal. Mar. 5, 2014) (compelling production of contact information for absent class members in employment class action where “Plaintiffs have demonstrated that discovery from putative class members may lead to anecdotal evidence not captured in the pay and benefits data produced by Defendants”) (emphasis in original);

Quintana v. Claire’s Boutiques, Inc., 2014 U.S. Dist. LEXIS 7973 (N.D. Cal. Jan. 21, 2014) (compelling access to statistical sample of class members’ contact information in wage-and-hour case).

18

Solicitation concern

“in a class action lawsuit, "case development" necessarily includes efforts by the plaintiff "to inform potential class

members of the existence of [the] lawsuit," and "to obtain

information about the merits of the case from the persons

they [seek] to represent." Gulf Oil, 452 U.S. at 101. By

Defendant's logic, nearly all class action litigation violates the RPCs.”

Rinky Dink, Inc. v. World Business Lenders, LLC, No. C14-

0268-JCC, 2014 U.S. Dist. LEXIS 150624 (W.D. Wash. Oct.

23, 2014).

19

What can you ask an absent class

member?

Details of incident in an incident-based class action.

Understanding of content of any declaration or sworn

statement. (Antoninetti v. Chipotle, Inc., 2011 U.S. Dist.

LEXIS 54854 (S.D. Cal. May 23, 2011).)

Expectations of lawsuit. (Antoninetti v. Chipotle, Inc., 2011 U.S. Dist. LEXIS 54854 (S.D. Cal. May 23, 2011).)

20

When is it admissible at trial?

To rebut inference of reliance on uniform misrepresentations. Low v. Trump Univ., LLC, 2016 U.S. Dist.

LEXIS 156423, *10-11 (S.D. Cal. Nov. 10, 2016).

21

23 23

When to Seek Discovery

Before class certification

After class certification, before trial



24 24

Types of Discovery

Surveys/Questionnaires

Interrogatories

Document Requests/Subpoenas

Depositions

Interviews (if ethical rules permit)

Inspection of Property / Product



25 25

Amount of Discovery / Selection Process

Statistical significance

Anecdotal evidence

Selection process (random / each side selects)



26 26

Preparation

Experts – e.g., statistics / consumer behavior

Focus groups / surveys to test approaches?

Pre-deposition interviews? (if ethical rules permit)



27 27

Case Law

“(1) the discovery is not designed to take undue

advantage of class members or to reduce the size of

the class, (2) the discovery is necessary, (3)

responding to the discovery requests would not

require the assistance of counsel, and (4) the

discovery seeks information that is not already known

by the proponent.”

McPhail v. First Command Fin. Planning, Inc., 251

F.R.D. 514, 517 (S.D. Cal. 2008)



28 28

Case Law

“where a strong showing is made that the information

sought (1) is not sought with the purpose or effect of

harassment or altering membership of the class; (2) is

directly relevant to common questions and unavailable

from the representative parties; and (3) is necessary at

trial of issues common to the class.”

McCarthy v. Paine Webber Group, Inc., 164 F.R.D.

309, 313 (D. Conn. 1995)



29 29

Case Law

Glickenhaus & Co. v. Household Int'l, Inc., 787 F.3d 408

(7th Cir. 2015) (securities class action – single interrogatory

formulated by judge; written discovery to approx. 100 class

members; 12 large institutional investors deposed)

In re Blue Cross Blue Shield Antitrust Litig., 2016 U.S.

Dist. LEXIS 170945 (N.D. Ala. Oct. 18, 2016) (subpoenas

to absent class members permitted, with meet and confer

procedure before serving)

Nitsch v. Dreamworks Animation SKG, Inc., 2016 U.S.

Dist. LEXIS 142790 (N.D. Cal. Oct. 14, 2016) (denying

request for interrogatories and doc. requests to 500 class

members (5% of class) on statute of limitations issues)



30 30

Case Law

In re Petrobras Sec. Litig., 2016 U.S. Dist. LEXIS

21028 (S.D.N.Y. Feb. 21, 2016) (Rakoff, J.) (denying

post-certification request for interrogatories to all

absent class members because it would convert opt-

out classes to opt-in classes and would not be

relevant to common issues)

Indergit v. Rite Aid Corp., 2015 U.S. Dist. LEXIS

160355 (S.D.N.Y. Nov. 30, 2015) (granting request

for 8 depositions, with deponents selected randomly

from approx. 1700 member class)



31 31

Case Law

Antoninetti v. Chipotle, Inc., 2011 U.S. Dist. LEXIS

54854 (S.D. Cal. May 23, 2011) (class members who

signed declarations could be deposed for 1 hour)

Arredondo v. Delano Farms Co., 2014 U.S. Dist. LEXIS

145562, *25 (E.D. Cal. Oct. 10, 2014) (approving 196

depositions of absent class members after certification

because “given the complexities of this case and the

population being questioned, depositions will ultimately

prove to be a more efficient and reliable method of

obtaining detailed information regarding absent class

members' experiences”).



32 32

Case Law

In re Nassau County Strip Search Cases, 2009 U.S. Dist. LEXIS 42769 (E.D.N.Y. May 20, 2009) (approving 25 depositions of absent class members post-certification)

Boynton v. Headwaters, Inc., 2009 U.S. Dist. LEXIS 94949 (W.D. Tenn. Jan. 30, 2009) (denying request for depositions but allowing defendant to serve non-mandatory questionnaire on absent class members)

Cornn v. United Parcel Service, Inc., 2006 U.S. Dist. LEXIS 69196 (N.D. Cal. Sept. 14, 2006) (denying request for depositions but allowing interrogatories or questionnaire)



defending class actions using absent class member...

Documents